Legal Research
Cases
Kumas v The Queen

Kumas v The Queen

Case [2017] VSCA 287 6 October 2017

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0191

MEHMET KUMAS	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL P, WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 October 2017
DATE OF JUDGMENT:	6 October 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 287
JUDGMENT APPEALED FROM:	DPP v Kumas (Unreported, County Court of Victoria, Judge Allen, 10 August 2017)

---

CRIMINAL LAW — Appeal — Sentence — Riot — Parity — Sentences imposed on co-offenders by different judges — Whether sentencing judge employed two-stage process — Requirement to compare applicant’s role with co-offender’s as part of instinctive synthesis — No error — Application for leave to appeal refused — DPP (Cth) v Gregory (2011) 34 VR 1, Lowe v The Queen (1984) 154 CLR 606 considered.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Smallwood	Emma Turnbull Lawyers
For the Respondent	Ms K E Judd QC	John Cain, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA
PRIEST JA:

Introduction

Two-tier (or two-stage) sentencing is anathema to the instinctive synthesis which guides the exercise of the sentencing discretion in this State.[1]
[1]R v Young [1990] VR 951; R v Perrier (No 2) [1991] 1 VR 717; R v O’Brien (1991) 55 A Crim R 410; R v Nagy [1992] 1 VR 637; R v Sahari (2007) 177 A Crim R 1; Trajkovski v The Queen (2011) 211 A Crim R 118; DPP (Cth) v Gregory (2011) 34 VR 1. See also AB v The Queen (1999) 198 CLR 111; Wong v The Queen (2001) 207 CLR 584; Markarian v The Queen (2005) 228 CLR 357.

In the present application for leave to appeal against a sentence imposed upon the applicant for riot,[2] it is claimed that the sentencing judge indulged in a form of two-stage sentencing. Thus, the applicant’s sole ground of appeal is:

The sentencing discretion miscarried as a consequence of the sentencing judge engaging in a form of two‐stage sentencing rather than instinctively synthesising all relevant considerations.
Particulars:
(a) The sentencing judge used the sentence imposed in DPP v Luca [2016] VCC 1573 (Luca) as a starting point.
(b) The sentencing judge determined that the applicant should receive a longer sentence than was imposed in Luca, because: (i) the applicant’s role was at least as serious if not marginally more serious; (ii) the applicant was not a youthful offender; and (iii) the applicant had a more significant criminal history.
(c) The sentencing judge moderated the extent to which the applicant’s sentence was to be longer as a result of matters personal to the applicant.

[2]The judge imposed a sentence of two years and 10 months’ imprisonment with a non-parole period of 16 months. Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that but for the plea of guilty he would have sentenced the applicant to four years’ imprisonment with a non-parole period of two years and six months.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kumas v The Queen

Details

AGLC: Kumas v The Queen [2017] VSCA 287
Case: [2017] VSCA 287
Decision Date: 6 October 2017

CaseChat Overview and Summary

The case of Kumas v The Queen involved an appellant who appealed against the sentence imposed for his involvement in a riot. The court of appeal was tasked with determining whether the original sentencing judge correctly applied the principles of sentencing, particularly in relation to the comparison of the appellant's role with that of his co-offenders, and the requirement to conduct a two-stage sentencing process. The central issue was whether the sentencing judge appropriately considered the roles of the co-offenders in the commission of the crime and whether this was part of an instinctive synthesis, as required by Australian sentencing law.

The court examined whether the sentencing judge had adhered to the established two-stage process for sentencing, where the first stage involves determining the appropriate penalty range and the second involves adjusting that range based on various aggravating and mitigating factors. The court also scrutinised whether the judge had adequately compared the roles of the appellant and his co-offenders as part of this process. The court concluded that there was no error in the sentencing judge's approach and that the principles of parity and the instinctive synthesis were correctly applied. The comparison of the roles of co-offenders was deemed to be an integral part of the sentencing process.

The court found that the sentencing judge had correctly applied the legal principles in arriving at the sentence. The comparison with co-offenders was not an isolated step but rather an integral part of the judge's overall assessment. The two-stage process was properly employed, and there was no indication that the judge had overlooked any relevant factors. Consequently, the appeal was dismissed, and the application for leave to appeal was refused. The principles from DPP (Cth) v Gregory and Lowe v The Queen were considered and upheld in the context of the present case.

Orders